El blog de Maria

Recent Court Decission by Civil Room of the Supreme Court, dated 7th May 2014, has set a judicial doctrine which states:

-If you claim against a Guarantoor in a declarative proceeding, every delay is cancellatory.

- Provision 3 of Law 57/68 sets an automatic cancellation in favour of the buyer who has paid advanced amounts. There is no need of applying provision 1124 of the Civil Code-- where delay was analised in terms of seriousness to produce a cancellation. Every delay is cancellatory under Law 57/68.

Against SGR and BBVA in a Herrada del Tollo case. Dated 26th June 2014

So proud of Judges in my country who are punishing Banks for their illegal operation during the Spanish Real Estate boom.

This case, which wsa notified yesterday to our Law Firms CostaLuz & DeCastro is a master piece of comprehensive and fundamented judicial application of Law 57/68. We are celebrating it since yesterday.

Among many important statements, the Court decission states:

- Obligation of Banks in regards to amounts deposited in their accounts is LEGAL-- so deadline to claim is 15 years

-Regardless you have or not an individual certicate, you are guaranteed if there is a guaranteeing agreement between a Bank/ Insurance Company and the developer you contracted with.

- Even if you signed the agreement in the Creditors Meeting, you can enact your rights out of Law 57/68

Foreign companies are much more optimistic about Spain than they were in 2012. Nine out of every 10 companies surveyed expect to increase or at least maintain their revenues from Spain in the year ahead. This marks a notable increase compared to two years ago, when just over one in three (37 percent) were expecting revenues to fall.

Forecasts are also positive with regard to investment and employment in Spain: 88 percent of foreign firms believe they will increase or hold steady their level of investment and 87 percent expect their staff to grow or remain stable this year. In both cases the 2014 figures are 17 percent higher than those seen in 2012.

Meanwhile, Spain's current business climate is rated 2.7 out of 5 overall, halting a downward trend seen in recent years, as the economic crisis took its toll.

These are some of the findings of the Barometer of the Business Climate in Spain, a survey of more than 230 foreign firms prepared by IESE's International Center for Competitiveness run by Prof. Antoni Subirà in conjunction with ICEX, the Spanish Institute for Foreign Trade.

The Strengths of the Spanish Market

The features of Spain that are most praised by foreign investors are its infrastructure, human capital, quality of life and the size of its market. Meanwhile, Spain is approaching a passing grade in six other areas analyzed by the survey -- with slight improvements seen in perceptions of its labor market, costs and financing, compared to previous years.

Spain's high-speed railways and airports are singled out for praise, boosting the score for infrastructure. Foreign companies are also bullish on Spain's human capital, the quality of its business schools, and its leisure and cultural offerings.

Despite high marks for human capital overall -- an area deemed very important to those surveyed -- the results indicate that foreign companies would like Spaniards to improve their language and oral/written expression skills, as well as their willingness to assume responsibilities and goals, their learning abilities and the availability of skilled (vs. unskilled) labor.

Quality of life is rated highly. The ease with which expats blend into Spanish society and the availability of international schools are praised in the study, although the cost of living is considered relatively high.

Room for Improvement

Negatives for Spain include the high cost of electricity and difficulties with financing and regulatory issues. Financing is the area with the lowest scores on the barometer, although some improvement is seen in the cost of financing from commercial banks, compared to 2012.

As for Spain's regulatory issues, foreign investors seek greater stability. They also want to see less bureaucratic red tape and speedier and more efficient commercial courts.

Foreign companies also complain about the high cost of complying with regional and local legislation. A total of 65 percent agree that the business community would benefit if the rules set by Spain's different levels of government were made uniform.

Regarding taxation, foreign companies feel Spain can make progress on corporate taxes, value-added tax (VAT) and employers' contributions to the Social Security system for their workers.

In three other areas -- namely, the labor market, costs and the size of the market -- Spain has made progress since 2012 but there continues to be room to improve.

As for the labor market, the main drawbacks have to do with legislation. On the bright side for companies, nearly 70 percent of the firms polled feel that recent labor market reforms make the market more flexible, and 60 percent give the thumbs up to changes in the way collective bargaining agreements are reached.

The Importance of Foreign Investment
Foreign companies' views on investing in Spain are very important to Spain's economy. In 2013, foreign investment totaled 15.8 billion euros, an increase of 9 percent compared to 2012.

Those numbers put Spain in 13th place in the world in terms of foreign investment flows, ahead of Germany, France and Italy.

I wish defaulters had reacted before this but, unfortunately, it is not being the case.

In many cases, they state that fees were not clear at the beginning of our work from them, which is completely untrue and we can prove it: ;)

1. We sent the full chart of our Bar Association with all due explanations for them to understand the feeing system at the very beginning.

2. We asked them to make all necessary related questions and we answered them all.

I am inclined to think that they just do not understand the nature of legal services and that, in this industry, regardless you win or lose, you need to pay the defence and the assistance you have been provided along the years.

I could also state that none of the vast majority of clients of last years have lost their case.... even when there are some that received Court decissions against them.

Why can I say this? Because, in most of the cases, what clients primarily wanted to avoid-- completion ( whatever the reason for this was)--- was actually avoided. We covered that from minute one.

If we-- or any other lawyer, of course-- had not assisted them then, they would probably now be paying expensive mortgages on properties which are now highly deprecciated.

And finally, despite we charged nothing for continued communication-- by email and phone--- -- as a courtesy, to these clients, our Bar Association establishes a price for these comms. I am thinking of adding that to the bill ( hum????) ;)

In Spain we say: NI AGRADECIDO, NI PAGADO :)

This song inspired the post today!

Have a wonderful day, those who pay and those who do not! Good sense of humor never to be lost!

Spent the whole bank-holiday we had yesterday at my town ( due to yearly festivals--Feria) reviewing existing Case Law for Banks liabilities when Bank Guarantees were not issued to off plan buyers: more than 60 now! Such a JOY!

Remember that for using this action, you need to prove an early cancellation will and activities. Supreme Courts estimates that acting these rights after a long period of no cancellation can produce cancellation but no refund is involved.

New case won by CostaLuz&DeCastro against PROMOCIONES INROAL S.L. & CAJA GENERAL DE AHORROS DE GRANADA (BANCO MARE NOSTRUM S.A.)

The final paragraphs of the First Instance Sentence delivered on 5 June 2014 and notified on 17 June 2014 state:

BANCO MARE NOSTRUM S.A. is sentenced to refund the amount of 19,469.94€ plus legal interest at 6% per annum on that amount from 3 August 2011 until the date of payment.

With regards to the liability of the Bank according to its obligations under LEY 57/1968 the Judge stated:

“The liability of the bank is not dependent on the bank account being titled or of the type ‘Special’, but what is important is the ‘essence’ of the account. Thus to understand in this case we are in the presence of a special account, the buyer must have paid to an account in the name Promociones Inroal S.L. opened in Caja General de Ahorros de Granada and the Bank must have known that the amounts being paid to that account were from off-plan buyers in relation to the construction of housing.

It is a proven fact that Promociones Inroal S.L. had only a single account with Caja Granada and it is a proven fact that Mr xxxxxxxx paid 19,469.94€ into the account to pay for an off-plan apartment. Thus it can be assumed that the bank knew that the account was for income derived from the purchase of off-plan homes.

It is proven that the money was credited to an account opened by Promociones Inroal S.L. in the bank known today as Banco Mare Nostrum and that account is a special account according to the meaning of Article 1 of LEY 57/1968. It must be concluded that the bank is responsible under the Article 1segundo of LEY 57/1968 for failing to demand from the Promotor the corresponding Certificate of Insurance or Guarantee.

Thus the bank is liable to the buyer for failing to fulfil its obligations according to LEY 57/1968 for amounts paid to the bank for the purchase of off-plan property”.

Good for Granada Judge! Congrats to client and Costaluz&DeCastro teams!!

Four recent Court Decissions by the Supreme Court, dated all April 2014 assert on liabilities of Bank receiving deposits in account in off plan purchases, out of provision 1segundo of Law 57/68. Very good news for those who never received a Bank Guarantee when buying off plan in Spain.

At the same time, it is necessary to remark that the cancellation will of the buyer needs to have been active along these years ( out of Courts or in Courts) as Supreme Court is understanding that the lack of activation of cancellation/refund rights for a long period of time implies a non interest on the said rights.

1. Generally, theBank will send to you a notice of Case being sent to Courts after three monthly defaults.They do not always send the case to Courts right away but an active negotiation with the Bank, with the help of a professional advised at this stage. It is not a good idea just to leave payments unattended and run away.

2. Once in Courts, the Judge will issue an enforcement order and will notify this to you for you to oppose it. Notification needs to be made to you in due address and through right means. Right address is that which wasagreed as address for notifications in the mortgage deeds. You need to have full control of any notification being sent there after your payment default as this is in many cases taken as an advantage by the Banks- notify you while and where absent- forobstructing your defence rights.

3. Defence ofyour position in Courts. Reasons to oppose the enforcementhavebeen recently increased after a Decision by the High Court Of Justice of the European Union.

4. Best strategy at this point is to answer the repossession with a dation counteroffer in order to reach an agreement with the bank to have the whole debt settled after the auction. Of course the difficulty of this varies depending on the equity you have on the house and policies of the Bank.

5.-As you know the way the Bank has to obtain liquid value out of the house is through public auction. If no one bids, the bank can keep it for no lower than 70% (for first residences) and 50% (for second residencies ) of value for auctions. Value for auctions is a big valuethe house was valuated for for mortgage purposes. It is contained in mortgage deeds and comprises: borrowed capital+ interests+ legal expenses

So, three CostaLuz Golden rules: (1)Never leave a repossession order unattended ,(2) Have control of the address for notifications,(3) Hire a good lawyer.

After the debt is liquid an enforceable, they can start an European Enforcement Order in the UK.

The new European Regulations on Inheritance Law will be applied to all sucessions ( after death) happening from summer of 2015 on. However, thanks to the temporary provisions of the rules, European citizens can chose Inheritance Law applicable, basicly between residency and nationality Law since summer 2012.

So, if for instance, you are a spanish resident and want to have your full inheritance ( all your worldwide assets) regulated by your nationality Law, you can make a new will now choosing this Legal regime

Entering into force June 2014, it will replace the existing tax treaty which was signed on 21 October 1975.

Be aware that, in some cases, Spanish national rules might be more benefitial.

Some aspects of it:

Dividends, interest and royalty payments

No withholding tax will be accrued on interest and royalty payments and to dividend distributions from qualifying participations (representing a minimum 10% participation in the company) made by Spanish or UK companies to residents in the other State, provided that the recipient of the income is the beneficial owner.

Dividends from non-qualifying participations may benefit from a reduced 10% withholding tax.

New rules on avoidance of double taxation on dividends received by Spanish residents from UK entities

Dividends received by a Spanish entity from a UK subsidiary that does not meet the requirements for the Spanish participation exemption will no longer be exempt and will only entitle the recipient to a foreign tax credit equal to the lower of the tax effectively paid abroad or the Spanish tax on such income.

Capital gains tax on shares of real estate companies

Article 13 of the new Treaty enables Spain to impose tax on capital gains deriving from the transfer of shares (or comparable interest) of an entity when more than 50% of its value derives, directly or indirectly, from real estate properties located in Spain.

This capital gains tax does not apply if the shares are substantial and regularly traded on a stock exchange, even if other than a Spanish or UK stock exchange.

Gains from the alienation of shares, or other rights, which directly or indirectly entitle the owner of such shares or rights to the enjoyment of immovable property situated in a Contracting State, may be also taxed in that State.

Trusts and partnerships

Article 4 aims at providing treaty eligibility to income and gains obtained by these entities unless it results in the income not being taxed in either of the Contracting States.

Anti abuse clause

Article 23 :treaty benefits will not be applicable to transactions where the main intention of the parties is to benefit from the same.

Exchange of info

Article 26: exchange of information provision as per the OECD Model.

The Treaty also seems to include certain specific rules for recognizing the new SOCIMI (Spanish REIT) tax regime, potentially providing attractive planning opportunities in connection with current and future real estate investments in Spain

BBVA, Unicaja, Caja Mar and Banco Popular are condemned to eliminate floor clause from their mortgage deeds and to refund all the undue amounts to consumers

These all Court Decissions have been passed in a period comprised between 22nd of April and 28th of May. It just applies 1303 of our Civil Code which explains that once an obligation is declared null and void, the parties are obligued to mutually restitute the object of the contract ( fruits attached) and price ( interests attached). Banks are condemned to pay costs back in them all.

Just transcribing from REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession shall apply to the succession of persons who die on or after 17 August 2015.

-Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.

-A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private inter­ national law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.

If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.

This regulation entered into force on the twentieth day following that of its publication in the Official Journal of the European Union, which was July, 27th, 2012

We have recently received a good deal of information from AIFOS Judicial Administrators through the judicial preliminary work we started in regards to our Aifos clients.

Some (1) General Bank Guarantees, which will enable us to act against those guaranteeing financial institutions regardless of the client having the individual certificate, and also information on (2) Bank Accounts were money was paid to, which will enable us to use action of provision 1.2 of Law 57/68.

Specially good for those who have a contract cancelled against Aifos as the Supreme Court is somehow limiting cancalletion rights for those who have been non active along all these years.

The best of news here is that Judges are understanding and applying Law 57/68 correctly and requesting judicial administrators to provide to lawyers what is necessary for the action.

Good!

Málaga, South eastern Spain, by Alfredo Rodriguez Brondo, at flickr.com

It is not the Town Hall property registry, it is not a census, it is not a cadastre, and it is not a list

It is much more than that: it is the ultimate authority on ownership and real estate rights in Spain. A public office for the record of ownership and real estate rights to the general knowledge of people.

The main function of a property registry is to provide reliable information and legal safety to citizens; they can rely on what is recorded there at the time of contracting on ownership or any other real estate rights: full and legal ownership, encumbrances, loans, charges, easements, habitation rights, ownership limitations, prohibitions for transference, judicial actions on the property, embargos...

Land Registry was created in Spain in 1861 to cover three goals:

1. - To provide solid foundations to the mortgage loan system.

2. - To provide protection to the holders of registered rights

3. - To provide speed to real estate legal traffic.

In some jurisdictions, such as German, registration is mandatory in order to convey the property. In other countries such as Spain, registration is voluntary, but it has huge and immensely relevant advantages that make it highly advisable!

Some registration principles in Spain:

1.- Principle of request: Any registration in the Land Registry must derive from the request of interested party

2.- Principle of priority: "First in the registry, better in Law". Once a right is registered, any other non- compatible right cannot win over it.

3.-Principle of Register Public Faith: This principle has the aim to provide legal safety to the market: "that which is not in the Register, is not in the reality".

4.-Principle of legality: Just valid and perfect right titles are registered. The legal judgment on validity and fullness is the mission of the Land Registrar.

5.-Principle of publicity: Nobody can allegate ignorance of what is recorded in the Land Registry

6.-Principle of legitimacy: All the Land registry records make every necessary legal effect and are fully valid unless they are expressly declared inexact or invalid.

7.-Principle of successive tract: Land Registry in Spain works as a chain, so no link can be engaged without the previous one.

8.-Principle of specialty: Tells about the system of the Land Registry, whose unit is the PLOT, which has a number and on which all related rights are recorded.

9.-Principle of impenetrability: Once the procedure for registration of a right has started, there is no gate for any incompatible rights to try to enter the Registry.

Land Registry procedures in Spain are very controlled and strict in order to provide safety and consistency to the mortgage market and the real estate traffic.

The role of Notary and Registrars is generally unknown by common law citizens as it is completely different from the role of them in your legal system. That is also why conveyance lawyers play a very different part in Spain and in the UK when working for you at the buy or sale of your house in Spain.

Main substantial aspects regulated by the Law draft recently approved by the Council of Ministries are, among others:

-Minimum amount for a SA will be risen from 60,000 Euros to 120,000 €

- 3000 € as the minimum for an SL. Creating a new SL for entrepreneurs whose minimum is of less than 3000€

- Electronic, tourism and financial and commercial contracts,

- Everyday transactions such as taking money out of an ATM or purchasing in automatic machines.

- Regulates credit cards

- Transfer of the business as a whole in bankruptcy proceedings.

- New techniques for Telematics and simplified setup of companies

- Extinction of a liquidated company in cases of lack of assets

- Regulation for partnerships and shareholders forums.

- Industrial property

- Different types of contracts such as supply, mediation, labor, provision of business services, operations on intangible goods, provision of electronic services, banking and financing contracts.

- Emphasizes the principle of equal treatment of shareholders under identical conditions, the differential treatment of listed companies, support to the principle of balanced presence of women and men on the boards, or the system to apply for economic interest groups and JV (Joint Ventures).

- Annual accounts, the amendment of the statutes or separation and exclusion of members, dissolution, liquidation and extinction of corporations, listed companies and joint ventures.

-With respect to the prescription and limitation of commercial obligations, it is reduced to a 4-year limitation period and prescription period can be interrupted just once by way of our of court request, in order to stop the maintenance of credits indefinitely.

-The Code addresses all market participants, mainly entrepreneurs, but also incorporates farmers, artistic professions or companies incorporated outside of Spain but with activities in the country.

As explained by the Deputy Prime Minister Soraya Saenz de Santamaria, the text aims to help boost economic activity “by providing a fuller trading market unit.”

Justice Minister Alberto Ruiz Gallardón, has said that the Commercial Code make life easier for citizens , increase legal certainty and open new opportunities to make Spain a more attractive country

Flowers of lavender in Mohedas de la Jara (Toledo), South western Madrid, Spain, at facebook.com